Shiv Ram Contractor, JODHPUR V. ITO, MAKRANA

ITA 93/JODH/2011

• Counselvise Citation: 9323314 RSA 2011
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-12-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 14-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R H GOYAL
• Assessee Lawyers: U C JAIN
• Keywords: Reassessment proceedings
• Section: 68

Judgement Text

1 ITA 93-11 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH SMC JODHPUR. ( BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER ) ITA NO. 93/JODH/2011 ASSTT. YEAR : 1997-98. SHRI SHIV RAM CONTRACTOR, VS. THE INCOME-TAX OFF ICER, VILLAGE : MANANA, WARD-2, DIST. NAGAUR. MAKRANA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI UC JAIN & SHRI RAJESH JA IN RESPONDENT BY : SHRI R.H. GOYAL DATE OF HEARING : 05.12.2011. DATE OF PRONOUNCEMENT : 09.12.2011. ORDER DATED : 09.12.2011. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 1997-98. 2. THE ONLY ISSUE INVOLVED IS AGAINST SUSTAINING TH E ADDITION OF RS. 3,12,850/- UNDER SECTION 68. 3. THE ASSESSEE HAS SHOWN 13 DEBTORS FOR ASSESSMENT YEAR 1996-97 AND OUT OF THESE DEBTORS CERTAIN AMOUNT WAS RECEIVED BY THE ASSESSEE AND THEY WERE CREDITED IN THE CAPITAL ACCOUNT. THE ASSESSEE HAS ALSO RECEIVED NEW CASH F ROM SHRI BHANWAR LAL, SHRI OM PRAKASH VYAS, SHRI NORAT RAM MALI AT RS. 58,750/-. THE ASSESSEE WAS REQUIRED TO PRODUCE THESE PERSONS. HOWEVER, THEY COULD NOT BE P RODUCED, THEREFORE, ASSESSING OFFICER MADE ADDITION UNDER SECTION 68 ON ACCOUNT O F OLD DEBTORS AND ON ACCOUNT OF NEW 2 CASH CREDITORS. ENTIRE AMOUNT OF OLD DEBTS OF RS. 2 ,54,100/- AND NEW CASH CREDIT OF RS. 58,750/- WERE ADDED. THE LD. CIT (A) ALSO CONFIRME D THE ACTION OF THE ASSESSING OFFICER. 4. MATTER CAME BEFORE THE TRIBUNAL, AND THE TRIBUNA L SET ASIDE THE ISSUE TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE CASH CREDITORS. THEREAFTER, REASSESSMENT PROCEEDINGS WERE STARTED AND INSPECTOR WAS DEPUTED TO EXAMINE A LL THE CASH CREDITORS. THE INSPECTOR FILED REPORT BY WHICH IT WAS SUBMITTED THAT THOUGH ALL THE CASH CREDITORS HAVE ADMITTED HAVING ADVANCED LOAN TO THE ASSESSEE AND REPAYMENT OF THE ASSESSEE, HOWEVER, IT WAS STATED THAT SIGNATURE OF THESE PERSONS DO NOT TALLY WITH THE SIGNATURE GIVEN IN THE AFFIDAVIT FILED DURING THE ORIGINAL ASSESSMENT PROCEEDINGS. ACCORDINGLY HE MADE ADDITION AGAIN. THE LD. CIT (A) HAS AGAIN CONFIRMED THE ADDITION. 5. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 6. THE LD. COUNSEL OF THE ASSESSEE HAS REITERATED H IS CONTENTION RAISED BEFORE THE LOWER AUTHORITIES. 7. ON THE OTHER HAND, THE LD. D/R PLACED RELIANCE O N THE ORDERS OF THE ASSESSING OFFICER AND LD. CIT (A). 8. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, I FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND. A COP Y OF RECEIPTS AND PAYMENTS AND BALANCE SHEET OF ASSESSMENT YEAR 1996-97 IS PLACED AT PAGE 16 OF THE PAPER BOOK. NAME OF DEBTORS IS ALSO APPEARING IN THE BALANCE SHEET. IT IS FURTHER SEEN THAT THE OPENING CAPITAL OF THE ASSESSEE WAS RS. 4,64,431/- AS ON 1.4.1996. THE CAPITAL ACCOUNT DURING THE YEAR AS ON 31.3.1997 IS OF RS. 4,46,240/-. IT MEANS THAT T HIS IS NOT A CASE OF CAPITAL BUILD UP. CAPITAL OF RS. 4,64,240/- WAS ALREADY THERE AS ON 3 1.3.1996. IN THIS YEAR THE CAPITAL IS REDUCED. THE AMOUNTS GIVEN OF DEBTORS HAVE BEEN SHO WN AS RECEIVED BACK. THESE DEBTORS 3 WERE ON ACCOUNT OF OLD CAPITAL WHICH WAS USED AS GI VING TO THE DEBTORS. THEREFORE, THIS IS NOT A CASE ASSESSEE HAS SHOWN NEW CASH CREDITOR IN THE YEAR UNDER CONSIDERATION. ACCORDINGLY I HOLD THAT THE ADDITION OF RS. 2,54,10 0/- WAS NOT JUSTIFIED AS THE SAME WAS RECEIVED FROM THE DEBTORS WHICH WERE OLD. ACCORDING LY TO THIS EXTENT THE ADDITION IS DELETED. 9. THE REMAINING AMOUNT OF RS. 50,000/- OR ODD, I FIND THAT ALL THE THREE CASH CREDITORS HAVE ADMITTED PERSONALLY IN HAVING ADVANC ED CASH LOAN TO THE ASSESSEE. AFFIDAVITS WERE FILED, STATEMENT OF THESE CASH CRED ITORS WERE RECORDED BY THE INSPECTOR DEPUTED BY ASSESSING OFFICER. ONLY ON ACCOUNT OF D IFFERENCE OF SIGNATURE IN AFFIDAVIT AND IN THE STATEMENT, ADVERSE INFERENCE WAS DRAWN BY TH E ASSESSING OFFICER. HOWEVER, THE FACT REMAINS THAT THE INSPECTOR APPROACHED THESE PE RSONS INDEPENDENTLY AND THEY HAVE ADMITTED IN HAVING ADVANCED LOAN TO THE ASSESSEE IN DEPENDENTLY. THEREFORE, IN MY CONSIDERED VIEW, THERE WAS NO JUSTIFICATION IN NOT ACCEPTING THE GENUINENESS AND CREDITWORTHINESS OF THESE LOANS. ACCORDINGLY, I DE LETE THE ADDITION OF RS. 58,750/- ALSO. IN THIS WAY, ENTIRE ADDITION MADE UNDER SECTION 68 AT RS. 3,12,850/- IS DELETED. 10. THE REMAINING GROUND IS CONSEQUENTIAL IN NATURE . THE ASSESSING OFFICER IS DIRECTED TO ALLOW CONSEQUENTIAL RELIEF TO THE ASSES SEE. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 .12.2011. SD/- ( R.K. GUPTA ) JUDICIAL MEMBER JODHPUR, 4 COPY FORWARDED TO :- SHIV RAM CONTRACTOR, NAGAUR. THE ITO WARD-2, MAKRANA. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 93/JODH/2011) BY ORDER, AR ITAT JODHPUR.